The Georgetown Law Journal

Randy E. Barnett & Evan D. Bernick

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism.

Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text).

Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implement-ing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences.

Neil S. Siegel

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution, the vindication of which requires more than compliance with legal rules: federal elected officials must also secure the American conception of democracy as collective self-governance and create a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and com-promise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. The final Part anticipates objections, including the concern that the vision offered here faces significant implementation problems.

Elizabeth A. Janicki

Contracts are formed via language, yet scholars and practitioners alike often ignore the fundamentally linguistic nature of offer and acceptance. Moreover, even those who have written about the intersection of linguistics and contracts have not used the most useful model for under-standing speech. Thus, this Note seeks to introduce linguist Roman Jakobson’s speech act model as a method of analyzing contract formation. Whereas previous scholarship has applied J.L. Austin’s and John R. Searle’s work on speech act theory, this Note demonstrates why Jakobson’s model better accounts for the dynamic linguistic actions of offer and acceptance. It provides those who must decide whether a con-tract has been formed—namely, judges—a tool for applying the reasonable person standard in a particular linguistic context.

Erin Collins

Actuarial recidivism risk assessments—statistical predictions of the likelihood of future criminal behavior—drive a number of core criminal justice decisions, including where to police, whom to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understand-able. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

Yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing. In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. Nevertheless, that is precisely how those who endorse actuarial sentencing—including the American Law Institute in the recently revised Model Penal Code for Sentencing—suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information. This Article reexamines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration— and it may do so for reasons that undermine the fairness and integrity of the criminal justice system.

Amee Frodle

The goal of this Note is not to state what we must do in regard to these questions, but only what we should do if we are attempting to adhere to either of the two democratic theories of representation suggested by the one-person, one-vote principle from Reynolds v. Sims. This Note addresses the current state of the law and the Census, and analyzes the two democratic theories of representation: Voter Equality and Representational Equality. This Note argues that the current regime of counting prisoners does not successfully adhere to either of the two theories, and that counting prisoners in their pre-incarceration address, although imperfect, adheres more closely to both theories.

Abigail Bush

This Note posits that the Second Circuit's new definition of friendship for insider trading cases, as set forth in United States v. Martoma, is incorrect. Rather, United States v. Newman’s close standard is the correct definition of friendship. The paper is divided into two parts. Part I addresses the antecedent issue of whether Salman v. United States rejected the close standard, concluding that Salman neither expressly nor impliedly rejected the close standard. Part II establishes that prior cases and the underlying policy rationale of the prohibition against insider trading compel the conclusion that the close standard is the proper definition of friendship under the gift theory.

Nathan J. Sherman

Part I of this Note provides a brief background of cryptocurrencies and ICOs. Part II examines historical speculative bubbles and argues that the ICO market is a speculative bubble. Part III explores characteristics of those who invest in bubbles as well as the psychological biases that those investors may encounter. It presents psychological arguments for market behavior in an effort to counter the neoclassical economic claims for why a bubble cannot occur and identifies two distinct types of investors in ICOs—the smart money investors and noise traders. Part IV discusses the limited regulations currently governing the ICO market. Finally, Part V argues that an asymmetrically paternalistic regulatory scheme is the most fitting way to regulate the ICO market. Part V does not provide a comprehensive regulatory framework; rather, it argues for light-touch regulation of ICOs and offers examples for how to implement such regulation.

Ashley C. Nicolas

This Note is divided into five parts. Part I explores the history of psychological operations broadly, examining how information has been used to manipulate adversaries and foreign populations. Part II examines the development of technology and how social media has changed the way psychological operations are employed during peacetime to shape attitudes and intervene in sovereign affairs. Part III examines the current legal framework surrounding psychological operations and demonstrates how the gaps in that framework create legal grey zones for states to exploit through the use of disinformation on social media. Part IV discusses the role of international agreements in qualifying state use of “weaponized social media” as a prohibited intervention. It then considers the design of a multilateral treaty that addresses the limits of acceptable deliberate state behavior on social media when the use is intended to manipulate foreign populations during peacetime. This Note concludes by addressing the threat of emerging technologies and the need to reach an international consensus regarding permissible online behavior.

William J. Aceves

In Jesner v. Arab Bank, PLC, the Supreme Court held that foreign corporations are not subject to lawsuits under the Alien Tort Statute (“ATS”). Written by Justice Kennedy, the highly fractured opinion offered several reasons for its holding. Although commentators have already criticized various aspects of Justice Kennedy’s opinion, one point has not received meaningful consideration and merits correction. In his plurality opinion, Justice Kennedy attached significance to the placement of the Torture Victim Protection Act (“TVPA”) as a statutory note to the ATS in the U.S. Code. In so doing, he disregarded longstanding practice and black letter law that the placement of a statutory note in the U.S. Code by the Office of Law Revision Counsel (“OLRC”) does not have any substantive impact on the law’s meaning, interpretation, or application. This error merits correction by the Court for several reasons. Although it undoubtedly influenced Justice Kennedy’s interpretation of the ATS, its implications extend beyond this case. It will affect future ATS and TVPA cases. It also creates uncertainty over the status of the countless statutory notes that populate the federal code. And, it raises constitutional concerns by attaching legal significance to OLRC’s placement decisions.